Shining a bright light into the dark corners of the shadow-world of literary scams, schemes, and pitfalls. Also providing advice for writers, industry news, and commentary. Writer Beware is sponsored by the Science Fiction and Fantasy Writers of America, Inc.

April 27, 2011

I'm down to the wire on book revisions (hope to have them done and dusted by Friday afternoon), so this week, I'm re-purposing (with some updating) a blog post from 2007 on the interminable agency clause in author-agent agreements. I'm not just doing this to spare myself a bit of time. I'm seeing such clauses in agents' contracts more frequently these days, and they are definitely something for writers to watch out for.

An "interminable agency clause" (sometimes called an "interminable rights clause" or a "perpetual agency clause") is language inserted into an author-agency agreement whereby the agency claims the right to remain the agent of record not just for the duration of any contracts it negotiates, but for the life of copyright. In other words, once your agent sells your book, the agency has the right to represent that book for as long as the book is in copyright (currently, in the USA, Australia, and most of Europe, your life plus 70 years)--even after the original publishing contract has expired, and even if your original agent leaves the agency.

Why is this a problem? Suppose you decide to move to a new agency, as often happens. If your old agency's agreement includes an interminable agency clause, you may not be able to bring with you any of the books your old agency sold for you, even if the contracts covering those books have long expired and rights reverted to you. Those rights, which can sometimes be profitably re-sold (especially if you score a success with a new work) are one of the things that can make you attractive to a new agent. Beyond that, it may not be a good thing to leave your rights sitting with an agency with which you no longer see eye to eye.

Or suppose your old agency doesn't have a problem with you taking your reverted books elsewhere, but because of an interminable agency clause, claims the right to collect commissions on any future sales of work it originally sold for you--even if it has nothing to do with those sales. Why should an agency be paid for a sale it didn't make? Obviously an agency's right to commissions should extend over the life of any contract it brokers, but once that contract terminates, so should its right to commissions, unless it makes a new sale.

Or suppose, as is increasingly popular these days, you wanted to bring your out-of-print, reverted backlist back into circulation via POD or electronic self-publishing. With an interminable agency clause, might your agency feel entitled to a share of your income? With some electronically self-published authors realizing substantial amounts of cash from their books, this is not an impossible scenario.

Many professional writers' groups have warned against interminable agency clauses, including the Authors Guild, SFWA, RWA, SCBWI, and Novelists Inc. According to the Authors Guild, "the minimal prospective benefit the clause provides is far outweighed by the inconvenience it causes authors and their estates and by the responsibilities that accompany the clause." In addition to the concerns identified above, the Authors Guild points out that your agency is unlikely to be around for the life of copyright, that changes in personnel and ownership may have an impact on skill and reputability, and that interminable representation can greatly complicate not just the task of literary executors, but also of the agency, which would need to track and enforce interminable rights.

The Authors Guild warning was issued in 2004. But the problem isn't going away. I continue to see author-agency agreements with interminable agency language--it's actually my impression that I'm seeing more of them of late. Clearly, authors need to be on their guard. Trouble is, the language can be subtle enough that it's easy to overlook or misunderstand. Many of the authors who have sent me contracts were aware of the warnings against interminable agency language, but still failed to spot it.

Below are some examples of the different ways in which agencies frame interminable agency clauses, with the relevant phrases bolded. All are taken from actual agency contracts.

** "The Agency and its right to receive commissions hereunder shall be co-extensive with the life of the copyright of the Work and any renewals thereof."

** "At time of termination of Agreement, all Work(s) sold by Agent shall remain with Agent and Agent shall remain Agent of Record in perpetuity unless otherwise agreed to by both Parties."

** "In the event that any Rights are sold, licensed, or otherwise disposed of by [agency], Licensor agrees that [agency] shall be irrevocably designated the agent for those Rights to the Work for perpetuity."

** "The Agency is entitled to the above-mentioned percentages as specified...for the legal life of the Work on agreements pertaining to the Work."

** "Author grants to agents/representatives and assigns the sole and exclusive right of selling in book form the above work in the United States of America and its Dependencies and anywhere in the world during the full terms of copyright and any renewals thereof."

** "It is understood that if rights to the Work have been sold during the term of this Agreement, Agent's interest in the Work is irrevocable...In recognition thereof, and in such case, Author hereby acknowledges and agrees that, regardless of when made or by whom, any and all contracts or agreements...regarding the Work are covered by the terms of this agreement; [and] agrees to arrange for all such contracts and agreements, regardless of when made or by whom, to name Agent as Author's agent of record."

What should you do if you encounter this kind of language? Call it to the agent's attention, and attempt to negotiate. I've heard from a number of writers who were able to strike interminable agency language from author-agent agreements simply by asking.

More specifically, here's what the Authors Guild recommends:

The best approach is for agents to simply drop the clause. Agents who are determined to retain a contractual right to represent an out-of-print work could adopt a clause such as the one that follows:

"On termination of this [publishing] Agreement, Agent will continue to have the right to represent the Work and collect a commission for the placement of the Work provided that (1) Agent places the Work within 6 months of the termination of this Agreement and (2) Agent sought a reversion of rights on Author's behalf within 6 months of the time the Work was out of print as defined in this Agreement."

What if the agent won't negotiate? Should an interminable agency clause be a deal-breaker? That has to be up to the individual writer. I've heard from writers who've accepted contracts with interminable agency clauses, and from writers who made the painful decision to pass on an offer of representation because of such clauses, and many (though not all) had good, solid reasons for their choice. Either way, it's important to make sure you understand the language of any contract you're signing, and that you are aware of the contract's implications--both in the present and for the future.

April 21, 2011

Last October, I blogged about David Boyer, a self-styled author and publisher who was discovered to be committing extensive plagiarism, publishing stories and books both under his own name and his many aliases.

Despite being publicly exposed, generating quite a bit of online discussion, and inspiring an anti-plagiarism blog devoted largely to mocking him, Boyer did not, apparently, give up his borrowing ways. And he got ambitious. Not content with filching fiction from non-famous members of the horror community, he decided to plagiarize (using one of his aliases) someone really famous: Dean Koontz. For this, there may be consequences other than mere ridicule.

The evidence--including an excerpt from Koontz's original story, an excerpt from the plagiarized version, and a letter from Koontz indicating that he's considering legal action--can be found at The Horror Zine, along with a list of Boyer's known aliases, and links to information and discussion about Boyer and his exploits.

Author Solutions Redux

I know that no one but me is paying attention to this trend any longer...but self-publishing mega-company Author Solutions, the world leader in inaccurate use of the term "indie publishing," has expanded its list of publisher partnerships yet again with Inspiring Voices, a self-publishing service that it will run for magazine and book publisher Guideposts. Black and white printing packages (adorned, in keeping with Guideposts' inspirational focus, with names such as "Exalt," "Uplift," and "Rejoice") run from $699 to $6,999, and there's the usual range of expensive marketing services.

I can't help wondering at what point ASI will start to cannibalize itself. The exploding electronic self-publishing sector--which is cheap, relatively easy, and allows authors to control their pricing--is already starting to make costly POD self-publishing look a bit quaint. Clearly such services are still profitable (which is their main appeal for publishers)--but at some point a saturation point will be reached. Is ASI speeding the process by diluting their market with these partnership ventures?

Ebook Pricing Redux

I've talked a bit on this blog about the contentious issue of ebook pricing. Many commercial publishers are attempting to set ebook prices too high for consumers' perception of value, while many electronic self-publishers are leveraging success with rock-bottom ebook prices. Consumers aren't happy about overpriced ebooks--hence the angry one-star Amazon reviews for popular authors whose ebooks, thanks to the different pricing models for digital and paper, cost less than their hardcovers--but are the extreme lowball prices going too far in the other direction? Do people even bother to read the ebooks they snap up for 99 cents?

Advocates for 99-cent e-books claim the low teaser price helps them gain new readers. But opponents worry that if readers come to expect the 99-cent price, it will no longer be effective as bait. Then what? they ask. Will authors start doing penny promotions in order to get their books noticed?

"Ask anybody who sells anything for a living: no business wins in a price war," Cronin warns. "And that's what we're looking at right now."

Or put another way, if authors don't value their work, will readers?

Taking a slightly different perspective, editor Rich Adin argues that 99-cent ebooks do create sales--but with them, possibly, a false picture of success, for the simple reason that readers spending 99 cents on a self-published ebook may not be doing so because they think they're going to love the book, but because 99 cents isn't much to lose if they hate it.

[N]ongatekept authors whose ebooks sell well fail to distinguish between books sold and books read. This is an important distinction. Using myself as an example, I am willing to read an author’s description of their ebook and spend a maximum of 2 minutes reading the sample online, and then, if the blurb seems interesting and the 2-minute sampling doesn’t reveal horrendous errors, I am willing to buy the ebook for 99 cents...

I am willing to spend 99 cents for a nongatekept ebook because it is not much of an outlay — it’s like buying a lottery ticket; I am willing to gamble $1 on odds of 6 million to 1 but I am not willing to pay $5.99 for such an ebook because the risk of getting dreck is much too high.

When I posted this article to Writer Beware's Facebook page, one reader quipped that he didn't care if anyone read his book, as long as they bought it. But authors should care, because the reading--not the pricing--is what keeps people coming back.

April 18, 2011

Judge Chin’s recent ruling that that the Google Books Settlement was not “fair, adequate and reasonable” was a victory for authors everywhere who depend on copyright, and particularly for those authors and their heirs whose works were inappropriately labeled “orphans.” It’s gratifying to see so many of the objections raised by authors and authors’ groups cited in the judge’s ruling.

From the beginning, the settlement raised fundamental questions about copyright and the rights of authors to control who uses and profits from the books, stories, and articles that they’ve created. The settlement would have given Google the right to use and profit from millions of books simply because they had digitized them, as well as the exclusive right to publish out of print “orphan” books. The settlement was widely regarded as “audacious” because of its casual disregard for the rights of authors, and rightly so. It attempted an end-run around copyright law for the benefit of Google by using a loophole in U. S. class action law. It was a legal monstrosity that Judge Chin rejected, declaring that "a copyright owner's right to exclude others from using his property is fundamental and beyond dispute."

The parties to the settlement have wasted much time and millions of dollars because they were too greedy, and wanted everything.

The question now becomes, “where do we go from here?” The parties were left free to negotiate a new settlement, or continue the original lawsuit. Judge Chin concluded that “many of the concerns raised in the objections would be ameliorated if the ASA (Amended Settlerment Agreement) were converted from an ‘opt-out’ settlement to an ‘opt-in’ settlement.” This is what many authors have been saying from the beginning. However, the details of such an opt-in regime are crucial to determining whether it could be found “fair, adequate and reasonable” to authors. If done correctly, an opt-in would allow authors to explicitly choose to participate in Google’s publishing program in the same way they decide whether to license their work to any other publisher.

Depending on how it was implemented, an opt-in Google Book Store might be a very good thing for authors, and the creation of an opt-in Book Rights Registry would also function to benefit them, as well as making inroads into the orphan works problem. The goal would be to create a new market for authors of out of print works, which would be in competition with Amazon and other e-book publishers. The key here is that Google is in a position to offer authors and other rightsholders of out-of-print works a deal that would be very attractive. It would be especially appealing for authors of out of print works who don’t have the money or technical expertise to create an e-book out of their work.

Some commentators have said that, since Google already offers authors the opportunity to publish through the Google Books Partner Program, it would be meaningless to have another opt-in publishing program, but the partner program is simply not attractive enough to give Google what it wants. In order to attract a very large number of authors to opt in, Google would have to make an offer that went far beyond the terms of the current partner program, giving rightsholders exceptional flexibility for their publications and offering most of the income from book sales to the authors, financing the program primarily from book search-related advertising revenue. In short, if they offer a good enough deal, authors will come and opt in.

A voluntary Book Rights Registry would go a long way to satisfy one of the Copyright Office’s recommendations about how to deal with the orphan works problem, by creating and maintaining a searchable registry of rightsholders’ contact information which could be used by publishers as they performed a “diligent search” for a work’s owner(s).

Orphan works pose a very real challenge under current copyright law, and an opt-in settlement does not address the problem. That’s entirely appropriate, because, as Judge Chin says, “a mechanism for exploiting unclaimed works is a matter more suited for Congress than this Court.” Hopefully, the defeat of the settlement in its current form will refocus efforts to address the orphan works problem where they belong, in the legislative branch of the government.

In order to reach a settlement that all authors can embrace, much work has to be done. There are still many valid concerns about how payments are split between authors and publishers--especially concerning works for which electronic rights were never licensed--and about the default assumption that publishers retain rights for the out of print works that they have abandoned.

Although making the settlement opt-in addresses most of the copyright, antitrust, and international law issues cited by Judge Chin, there are still problems with user privacy, security, and adequate class representation. Many of these problems result from the lack of diversity in authors represented in the settlement negotiation. For the settlement to truly represent all authors, the Authors Guild must include other writers’ groups in future settlement talks. The creation and administration of the Book Rights Registry, in particular, is too important to be reserved to one writers’ group.

Larry Page, who has recently returned as CEO of Google, initiated the wholesale scanning of books as a way towards an all-inclusive Alexandria Library of the future. If he is genuinely interested in doing no evil, opt-in is the only course open to him, and, by financing a genuinely revolutionary system that gives authors a deal no one else can match, he will bring about the digital revolution that he wants, without violating antitrust or copyright law.

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Michael Capobianco is the author of one solo science fiction novel, Burster (Bantam 1990), and co-author, with William Barton, of the controversial hardcore SF book Iris (Doubleday 1990, Bantam paperback 1991, Avon Eos 1999), Alpha Centauri (Avon, 1997), and the critically acclaimed near-future novel Fellow Traveler (Bantam, 1991). Capobianco served as President of Science Fiction and Fantasy Writers of America (SFWA) from 1996-1998 and 2007-2008. He received the Service to SFWA Award in 2004 and is currently on SFWA's Board of Advisors.

April 12, 2011

The London Book Fair is in full swing right now. Book Expo America is coming up next month. Throughout the year, book fairs draw crowds of publishers, agents, and industry professionals of all kinds to promote their products, take stock of the competition, and make rights and other business deals.

Authors are drawn to book fairs too. Some come to view the scene, soak up the atmosphere, meet with their friends or their agents or their editors. Some self-published authors buy space to sell and promote their own books. Many aspiring authors come in hopes of making connections and maybe even landing that elusive book deal (though this is largely a pipe dream; book fairs are for the book industry, not for authors). Some come at their publishers' invitation, to help promote their most recent works (for instance, Disney Editions has arranged for Ann to sign her new book next month at BEA).

If you're a big name, or a hot debut author, your publisher may pick up the entire tab for your book fair attendance--from transportation to admission to meals. If you're less prominent, it may expect you to pay your own way. What it will never do, however--if it's a reputable publisher, that is--is ask you to pay a fee for book fair presence, or charge you for the expense of bringing either you or your books to a fair. Why? Well, reputable publishers don't expect their authors to pay fees of any kind. Just as important, selling books and rights is not an "extra" that your publisher undertakes only under special circumstances--it's the publisher's primary job. It's why the publisher is at the fair in the first place.

Less reputable publishers, by contrast--many of which use the majority of their marketing power not to sell books and rights but to turn their authors into customers--may see book fairs, and the mystique that surrounds them, as just another item they can hawk. Here are a few real-life examples.

In 2009, I blogged about SterlingHouse Publisher (SterlingHouse and its many imprints offer contracts requiring authors to buy large quantities of their own books), and its BEA book fair packages, which cost as much as $9,500. True, that jaw-dropping fee included perks--a signing in the SterlingHouse booth, free books, a poster, presence in a paid ad on the cover of PW. Nonetheless, the main benefit was to SterlingHouse, which, if it sold all its available attendance packages, stood to gross over $135,000. (SterlingHouse isn't a listed exhibitor at this year's BEA, so maybe that didn't work out so well after all.)

Strategic Book Publishing has a whole menu of book fair charges--$199 for an individual show, $499 for "Author in Booth," $685 for an "All Shows Package," $111 for translation sheets to market to foreign buyers. The prices it quotes to authors in emails (a number of which Writer Beware has seen) can be even higher--for instance, for last year's Beijing Book Fair, "Author in Booth" cost $998 (transportation, meals, lodging, and books extra). If you wanted your book in the booth for longer than the half-day guaranteed by "Author in Booth", you had to shell out an additional $298 for the "Book in Booth" option. Strategic attends numerous book fairs each year, and charges author fees for all of them.

Book fair exhibition packages are also sold by self-publishing companies. For instance, Llumina Press offers BEA "representation" via an ad in its catalog, with costs ranging from $159 for one-sixteenth of a page to $1,299 for a full page (it also recommends that authors buy at least 24 copies of their books to use as giveaways at the show). And self-pub service Xlibris will give you a press release, a place in the Combined Book Exhibit display, and a CBE catalog listing for $999 to $1,699, depending on the show you choose. (That's a lot of dough, especially since you can pay CBE yourself to exhibit your title, and it will cost you just $195 to $295, plus up to $150 if you want a catalog ad.)

Self-pub companies at least are straightforward about their business model, but whether their book fair packages are a good investment is another question. Has any author ever sold rights or books as a result of buying one of these packages? I've never heard of any. Traditional publishers do acquire self-published books, but when this happens it's usually as a result of strong sales, media exposure, word of mouth, or serendipity--not listings in book fair catalogs.

Publishers and publishing services aren't the only ones seeking to make a profit on book fairs. Writer Beware knows of a number of dodgy literary agents who sell catalog space or charge their clients extra for book fair presence, and there are consultants and coaches--some qualified, some less so--who for hefty fees offer special book fair representation to unpublished and self-published authors.

In all these cases, the objective isn't to represent you or to further your career, but to make money on you. It's not about finding new markets for your work, it's about finding new ways to turn you into a customer. By all means, attend a book fair if you want--but the only fee you should pay is for admission.

April 8, 2011

Once upon a time, a motley crew of knights, hobbits, and assorted elves--all members of the Fellowship of the Science Fiction and Fantasy Writers of America--set out to prank a certain publisher of ill repute. This publisher, you see, was an author mill--it accepted pretty much any manuscript that came its way. Yet it held itself out as being selective, just like a "real" publisher, the better to lure unwary authors into its Mordor-like embrace. And the motley crew thought that wasn't proper.

A kindly wizard was the project's mastermind, and he decreed the parameters of the quest: create a manuscript so wretched, so mind-numbingly awful, that no sane publisher--not even a slightly selective author mill--could possibly accept it. Calling his unlikely band of adventurers into conclave, he conferred upon each a solemn task: create a chapter based on three characters, their one-sentence descriptions, and a single writing prompt. The adventurers weren't to worry about plot; they weren't to concern themselves with continuity. "Into the fray, brave champions!" the wizard cried. "You know the rules of writing. Break them. Break them all!"

Thus was born the immortal manuscript known as Atlanta Nights. Through tumbled wastes of fractured grammar, across stinking swamps of purple prose, through forests of confusing metaphor swept by hurricanes of dreadful dialog, where said bookisms swung like rotting fruit, our heroes fought to fulfill their quest. And each in the end did deliver to the wizard one horrifyingly bad chapter. And the kindly wizard dubbed the band of heroes Travis Tea (say it fast), and molded the chapters into a digital file (wearing a wizardly hazmat suit, lest the bad writing prove contagious), and with a wave of his staff, sent the file winging through the digisphere. And the publisher, which hadn't yet reached its acceptance quota for the day, and often never bothered to look at the manuscripts it accepted anyway, sent back this clarion call:

In April only, you can also download the sequel, The Garden of the Stone, for half-price--just enter Coupon Code DIR06579 at checkout.

Long ago, when the worlds were one...So begins the Tale, the ancestral legend Bron's family has guarded for a thousand years. Once, they were the keepers of the Stone, the most sacred object on earth, from which all the powers of Mind are drawn. But when the conflict between Mind and Hand split the worlds apart, the Stone was seized by an ambitious sorcerer. To keep the new world from contamination, he created rigid Limits circumscribing which tools might be made and which knowledge might be pursued—laws brutally enforced by a group of Guardians known as the Arm of the Stone.

For centuries, Bron's family has concealed the secret of its heritage. But when Bron's brother invents a new kind of plow—an unpardonable heresy in the world of the Guardians—the Arm of the Stone reaches in once again to tear them apart. Fleeing for his life, Bron vows revenge. To strike the Guardians down, he will become a Guardian himself. But Bron cannot know how much that choice will change him. Nor does he anticipate the hatred of a powerful enemy, or the love of a beautiful Guardian named Liliane...whose mission is to destroy him.

“Involving fantasy, treated with unusual depth.”—Locus

“This book was so compelling that I put everything else aside and read it...a most unusual and fascinating novel, exceedingly well-done.”—Anne McCaffrey

“An intelligent, fascinating novel...the complicated politics and social structure of this world give it a depth most fantasy novels lack.”—SF Site

"A rich story about human nature, this fantasy is a thought-provoking page-turner....A thoroughly enjoyable read."-Kliatt

April 4, 2011

This blog post was inspired by a recently-seen "acceptance letter" from a fee-charging publisher (which doesn't admit its fees on its website; writers don't find out about them until they've actually submitted). The arguments below are commonly used by less-than-honest fee-chargers to distract authors from the fact that they're being asked to pay several thousand dollars for publication.

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We aren't a vanity publisher because we don't publish every manuscript we receive. Many fee-charging publishers make this meaningless claim. Sure, they probably do reject manuscripts, if only to keep their output in line with their production capacity, or for logistical reasons--mss. that are too long (and would reduce the profits from fees), that conflict with stated goals (for instance, if the publisher self-identifies as Christian), or that are written in crayon on construction paper (digital conversion would cut into profits). There may even be some real level of quality control. But fees are a fee-charging publisher's main source of income, so it can't afford to be too picky. Any gatekeeping that exists is unlikely to be even remotely equivalent to that exercised by genuine trade publishers. In any case, whether the publisher is selective or not, it doesn't change the fact that you're being asked for money.

We aren't a vanity publisher because you're not paying for publishing, just for [pick one] editing/publicity/a supply of books to keep on hand. In an attempt to dodge the "vanity" label, some fee-charging publishers have switched their fees to aspects of the book publishing process other than production, such as editing, publicity, cover art, and the like. Or else they pretend to avoid fees entirely, requiring authors instead to buy bulk quantities of their own books. These diversionary tactics allow them to claim, with straight faces, that authors don't have to pay for publication--even as those authors are being asked to hand over thousands of dollars.

We aren't a vanity publisher because we don't make you buy your own books. Amazingly, some fee-chargers attempt to use a diversionary tactic by their less-than-honest brethren as...a diversionary tactic. You don't have to buy your own books! Instant non-vanity! Just overlook the fact that we want you to give us several thousand dollars!

We aren't a vanity publisher because we also offer non-fee contracts. Okay. But you only have their word for that, right? And even if it's true, YOU are getting a fee-based contract. Think about that double standard--what does it say about the way the publisher views you and your work?

We aren't a vanity publisher because your fee covers only part of the cost--we provide the rest. Again, you only have their word for that. It's highly likely that this claim is being made not because it's true, but to make you feel better about surrendering large sums of money. In most cases, where publishing fees are due, they cover not just the full cost of production and publication, but the publisher's overhead and profit as well.

We aren't a vanity publisher because we refund your money if you sell a certain number of books. Once again, this is a sales ploy, designed to make you feel better about paying a fee. It's likely that the sales threshold is set so high that authors will rarely, if ever, achieve it--especially given the very limited distribution and marketing that most fee-based publishers provide (since the bulk of most fee-based publishers' income comes from authors' fees, they have little incentive to cut into their profit with effective marketing and distribution--although some will provide more if you pay extra).

Another thing to wonder about: if by some amazing chance you do manage to reach the sales threshold, will your publisher make good on its refund pledge? Some fee-based publishers will. Others are just plain lying.

We aren't a vanity publisher because if your first book sells X number of copies, we'll publish your second book at no cost. I've been seeing this claim from fee-based publishers since Writer Beware was founded twelve years ago. Again, it's a marketing pitch--a carrot to make you more amenable to writing a ginormous check. As with the sales thresholds for refunds, the bar is usually set almost impossibly high--and once again, while some fee-charging publishers do make good on their promises, others don't.

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If a cost is associated with publication--no matter what that cost is supposed to cover, or how you incur it--never allow yourself to be distracted from the fact that you are being asked for money in order to see yourself in print. In other words, you are buying a service, not being chosen for a privilege or a partnership. As in any consumer situation, you owe it to yourself to make sure the service is reputable, honest, and cost-effective--which means not just researching the service and comparison-shopping, but being sure that buying the service is a good idea to begin with.

An honest self-publishing company or book manufacturer will be straightforward about the fees they charge and the services they offer. They will not attempt to pretend they are something they're not. Beware of any fee-charging publisher that invests a lot of time and/or verbiage in trying to convince you that it's not what it seems to be--especially if that publisher presents itself misleadingly on its website or in other public documents.

April 1, 2011

In a perhaps not unexpected move, Google/Youtube has placed itself in the position of betting its future on the results of the Google Broccoli Kitten Settlement.

Miu-miu, a.k.a Broccoli Kitten, sued the billion-dollar firm shortly after its birth in 2010, along with other cats that have been misrepresented on the Internet. An attorney for the cats, which do not speak, claimed that Google had profited from advertisements on searches for “broccoli kitten” and other extremely cute cat videos, appropriating the cultural ur-gestalt embedded in the DNA of the domesticated feline without first seeking permission. Cats sued, filing for a class action representing all mammals and amphibians in videos that had been exploited.

Shortly after the lawsuit was filed, the parties negotiated a Settlement, rather than seeking a judgment from the court. The Settlement would cover all animal videos that had been placed on Youtube from its inception until March 29, 2012, and would allow cats to collect 50% of any advertising revenue that Google would have earned from all search terms that refer to a mammal or amphibian.

The Settlement would also initiate a Cat Video Registry that would be responsible for re-shooting all videos that contain animals other than cats, and replacing them with cats. The Registry would also attempt to locate and catalog the large numbers of orphan cats that exist worldwide, in order to expand Google's database of cat images. In return, Google and Youtube would be free to create new videos of cute cats, without compensation, unless the cats squawked.

A spokesperson for Google, attorney Clancy Claymore, has defended the Settlement in public venues from California to Mississippi, saying that while dogs, horses, and geckos would be included in the suit, they could opt out if they chose--though Google could not guarantee that their images would not be appropriated anyway. Spokesanimals for the affected creatures were unavailable for comment.

The case is now before Second Circuit Judge Juddy Jawe. It is hoped that the Settlement will be approved before the Big Crunch, if indeed the universe doesn’t just fade away into enormity.